B.R. James, J.
1. The Municipal Board of Hapur decided to impose water-tax, and after its proposals and rules had been finalised they were sanctioned by the Commissioner (who is the prescribed authority for the purpose) and a Notification was published in the U. P. Gazette dated 11-12-1956 imposing the tax in question from 1-4-1957. The petitioners, who are fifteen house owners of Hapur, received notices from the Board for payment of the water-tax assessed in respect of their houses.
They have come up to this Court under Article 226 of the Constitution and pray for the issue of a writ or order preventing the Board from realising the tax, and their principal contention is that the tax is illegal inasmuch as it has been imposed in contravention of various provisions of the Municipalities Act 1916 (hereinafter referred to as the Act).
2. When a Board desires to impose a tax it is lequired to follow a procedure which is found laid down in Sections 131 to 135 of the Act. It is a somewhat complicated procedure, but it has been lucidly outlined in the judgment of a Division Bench of this Court in Kedar Nath v. Municipal Board, Gorakhpur, 1956 ALJ 198. Hence it is not necessary for me to reproduce it here. It is incontestable that no tax can be said to be validly imposed unless this procedure has been followed. Consequently the question to which I have to address myself for deciding this petition is whether or not the Board has imposed the water-tax by adopting the procedure laid down by the Act.
3. Before I turn to consider the arguments advanced on behalf of the contending parties I should like to lay emphasis on one point. Taxation tc be valid must be levied, assessed and realised in strict conformity with the statute which authorises it. Also, in the present instance a reading of Sections 131 to 134 makes it abundantly clear that the legislature want that wide publicity should be given to the proposals and the rules framed by a Board for levying, assessing and realising a Municipal tax so that all persons who may be affected by the tax mayhave an opportunity of raising objections if they wish to. It follows that the Board must strictly comply with the provisions of Sections 131 to 135. This consideration will have to be borne in mind in assessing the value of the contentions of the rival parties.
4. A preliminary point may be disposed of here. The Board alleges that the petitioner No. 2, Janmaij'ai Kripal, was himself the Chairman of the Water Works Committee of the Board which had originally framed proposals for the imposition of water-tax, and the argument is that this being so he, and consequently his fellow-petitioners, must be presumed to have had knowledge of the proposals. The simple answer is that even if it be assumed that the petitioner No. 2 had the necessary knowledge, this does not take away his Constitutional right of challenging the validity of the new taxation measure there is no such thing as estoppel applying to a matter like this.
5. I turn now to the submissions of the parties. The first contention of Mr. Khare, learned counsel for the petitioners, is that although the Board passed special resolution No. 295 dated 23-11-1955, this resolution does not comply with the requirements of Section 131(1). The reply of the Board, as appears from para 3 of the affidavit filed on its behalf by its Head Clerk, is that its Water Works Committee prepared draft rules for the assessment and collection of water-tax, that these rules were placed before a meeting of the Board on 23-11-1955 and that that day the Board passed special resolution No. 295 adopting the draft rules and also framing proposals as required by Section 131(1).
A copy of the special resolution in question, which is in Hindi, has been filed. Translated into English it would run:
'Water-tax and water-supply draft rules as pass-led by the Water Works Committee are put up for approval. They are approved and necessary action be taken.'
Now, Section 131(1) enacts that the special resolution should frame proposals specifying (a), the tax which is desired to be imposed, (b) the persons or class of persons to be made liable, and the description of property in respect of which they are to bs made liable, and (c) the amount or rate leviable from each such person or class of persons. These details are almost totally missing from the resolution just quoted. Further, it appears from the resolution itself that at the meeting the Board had before it only the rules referred to in Sub-section (2) of Section 131, so that the resolution it passed was confined to those rules only. No proposals were before it, nor were any framed. Besides, the rules themselves never formed part of the resolution in the way in which it was worded. Thus the Board committed a clear breach of the statutory provisions of Section 131(1).
6. Mr, Khare next contends that assuming that the proposals enjoined by Section 131(1) were framed, neither these nor the draft rules framed under Section 131 (2) were published in the manner prescribed in Section 94, so that the provisions of Sub-section (3) of Section 131 were violated. Sub-section (3) of Section 94 is in these words:
'Every resolution passed by a Board at a meeting shall, as soon thereafter as may be, be published in a local paper published in Hindi, and where there is no such local paper, in such a manner as the State Government may, by general or special order, direct'.
There is a Notification dated 5-7-1916 issued by the State Government which provides that where in a Municipality there is no local paper a copy of every resolution passed by the Board at a meeting shall, within ten days from the date of the meeting, be posted up and for thirty days and be kept posted up on a notice-board to be exhibited for public information at the building in which the meetings of the Board are ordinarily held. Mr. Khare declares that although newspapers are regularly published in Hapur the Board's special resolution regarding water-tax was never published in them nor was a copy posted on the notice-board of the Board.
7. It is not disputed that the special resolution in question was never published in any newspaper. It is established from the record that two Hindi weeklies entitled 'Janmat' and 'Bharatvarsh' and one Hindi daily entitled 'Vyapar' are published at Hapur; the record further discloses that 'Vyapar', which is of over 30 years standing, is authorised to publish court and Government notices and that 1100 copies of it are issued every day.
The only excuse offered by the Board for not publishing the aforesaid special resolution in any of these papers is, as given in para 4 of its counter-affidavit, that 'there was no suitable local paper having wide circulation in the town at that time'. The law, it should be pointed out, nowhere prescribes that the paper should be 'suitable' or that it should have a 'wide circulation'- it only requires the publication to be made in a 'local paper published in Hindi'. The excuse of the Board cannot therefore be accepted.
8. Mr. Dwivedi, learned counsel for the Board, argues that although the word 'shall' occurs in Section 94(3), this provision is not mandatory but only directory, and ho points out that the section Itself permits alternative modes of publication, and further that if a resolution of a Board is not published in a paper the mere fact of its non-publication would not render that resolution invalid. I agree that the question as to whether a statutory provision is mandatory or directory depends upon the intent of the legislature and not upon the language in which it is clothed; further, the meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other: see State of Uttar Pradesh v M. L. Srivastava, : (1958)IILLJ273SC .
Accordingly I am not prepared to disagree with the proposition that an ordinary resolution of the Board need not necessarily be published in a newspaper before it can be deemed valid. But I think I am justified in making a distinction between a special resolution like the one in dispute and an ordinary resolution, and in this view I feel fortified by the provisions of Sections 87 and 88 of the Act by which a clear distinction is drawn between resolutions which are special and those which are otherwise.
I have already drawn attention to the necessity of giving wide publicity to taxation proposals so that those whose pockets are likely to be affected have a chance of raising objections. Publication in a newspaper is a recognised mode of giving publicity. Bearing in mind these circumstances, and the rule of law just mentioned, I feel I am on solid ground in holding that the provisions of Section 131 (3) with regard to publication in the manner prescribed in Section 94 (3) are mandatory. It follows that by omitting to publish the required material in one of the local papers, specially 'Vyapar', the Board was guilty of contravention of a statutory provision.
9. On behalf of the Board Mr. Dwivedi further pleads that, as provided by the notification of the 5-7-1916 (to which reference has been made above) the special resolution was posted on the notice-board and was also announced in the town by beat of drum. The plea is untenable. In the first place, the Notification begins to operate only where there is no local paper, which is certainly not the case with Hapur. Second, beat of drum is not a mode of publication recognised by the Notification in question.
Third, the assertion that publication was made by posting on the notice-board and by beat of drum rests solely on the counter-affidavit of the Head Clerk of the Board, but -- and this is a matter which I must stress -- he has not sworn to this fact on personal knowledge but only on a perusal of the appropriate file. This Court has had to point out on many occasions that the person who does a certain act should be the one to swear the affidavit with regard to that act, and further that when any paper of a record is relied on a true copy of that paper should be filed The Board has not adopted either course in this case. On the other hand, here is a definite assertion in para 3 of the rejoinder affidavit sworn by the petitioner no. 1 that no posting on the notice-board or beat of drum took place. In these circumstances I am not prepared to accept the allegation that publication in the manner alleged by the Board was ever made. Again the omission was a contravention of Sub-section (3) of Section 131.
10. Mr. Khare finally contends that under the last part of Section 131(3), the Board, along with the proposals and the draft rules, is bound to publish a notice in the form set forth in Schedule III, but failed to do so. The matter allegedly posted on the notice-board is Annexure B of the Head Clerk's counter-affidavit. Now, Schedule III requires that to such a notice both the proposals and the draft rules be appended. But Annexure B shows that, although it does contain the proposals regarding water-tax, the draft rules framed for the purpose are omitted from it.
11. I come now to Mr. Dwivedi's trump card, which is Clause (3) of Section 135 of the Act. It is in these words :
'A notification of the imposition of a tax under Sub-section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act.'
Mr. Dwivedi contends that inasmuch as an appropriate notification under Sub-section (2) was in fact published in the U. P. Gazette the imposition of water-tax by the Board, by virtue of Sub-section (3), is conclusive proof that it was imposed according to law, hence it is not open to anyone to challenge it, and he strongly relies on the Division Bench decision in Emperor v. Har Datt : AIR1936All743 , wherein it was held that the question whether a tax is in accordance with the provisions of the Municipalities Act or not is concluded by the fact that the imposition of the tax has been notified in the Gazette by the Government, and that after the Notification it is not open to anybody to question the validity of the tax, vide Section 135(3).
But, with great respect, I should like to point out that their Lordships assumed the validity of that Sub-section and did not stop to examine it. Mr. Dwivedi also relies on the principles on which the Privy Council decided the case of Moosa Goolam Ariff v. Ebrahim Goolam Ariff ILR 40 Cal 1. There the Memorandum of Association of a Company had been prepared in contravention of the Indian Companies Act of 1882; their Lordships held that, assuming that the conditions of registration were not duly complied with, the certificate of incorporation was by virtue of Section 41 conclusive for all purposes, and the Court could not go behind it and consider any alleged defects in the constitution of the Company. These two decisions therefore give Mr. Dwivedi extremely limited help.
12. I note that he has not been able to cite any decision in which a statutory provision raising a conclusive presumption like Section 135(3) of the Act has been held valid.
13. Mr. Khare argues on the other hand that the provision in question is hit both by the Constitution and by settled law so that he cannot be deprived of his right to satisfy the Court that the impugned provision is contrary to the law of the land, and further., that even if the Sub-section be held valid it does not apply to this case inasmuch as no proper foundation tor its application has been laid.
14. To take up first the argument based on the Constitution, Mr. Khare argues that the impugned provinsion violates the fundamental rights guaranteed by Articles 14 and 19(1)(i), to which Mr. Dwivedi replies that taxation is covered by Article 265, viz., 'No tax shall be levied or collected except by-authority of law', and since this Article does not fall within Part III of the Constitution taxation matters must be deemed to be independent of fundamental rights.
With this view I find it impossible to agree. Article 13(1) enacts that all laws in force in the territory of India immediately before the commencement of the Constitution--the Municipalities Act, 1916, is such a law--, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void, so that for a tax to be valid presupposes the existence of a valid law which imposes it. It follows that if Section 135(3) is found hit by any of the Articles dealing with fundamental rights it must be struck down as unconstitutional.
15. In my opinion it is not at all difficult to demonstrate that a provision like Section 135 (3) violates the guarantee of equality before the law under Article 14. Any citizen on whom the most serious criminal or civil liability is attempted to be foisted has the right to approach the Court and establish that the provision of the law under which he was being proceeded against was illegal, yet Section 135(3) absolutely debars him, if a municipal tax is demanded from him, from seeking redress from the Court by showing that the tax was unlawfully imposed.
Clearlv this profound differentiation can have no rational relation to the object sought to be achieved by the sub-section in question. In this connection I would refer to two cases decided by the Supreme Court of America. Both deal with the equal protection clause of the American Constitution. They are Mobile Jackson and Kansas City Railroad v. J. A. Turnipseed, (1910) 55 Law Ed 78-and William N. McFarland v. American Sugar Refining Co., (1916) 60 .Law Ed 899.
In the first, a statute had laid down that 'proof of injury inflicted by locomotives shall be prima facie evidence of the want of reasonable skill and care'; the Supreme Court pointed out that it was essential that there should be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate; further, that it 'must not, under guise of regulating the presentation of evidence, operate to preclude the party from the fight to present his defence to the main fact thus presumed.'
In the second case a State by an Act had created in certain circumstances a presumption of participation in a forbidden monopoly and a presumption that the closing of a sugar refinery for more than one year was for the purpose of violating the Act. Striking the Act down as unconstitutional the Court observed :
''The presumption created here has no relation in experience to general facts. It has no foundation except with tacit reference to the plaintiff. But it is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime. If the statute had said what it was argued that it means, that the plaintiff's business was affected with a public interest by reason of the plaintiff's monopolising it, and that therefore the plaintiff should be prima facie presumed guilty upon proof that it was carrying on business as it does, we suppose that no one would contend that the plaintiff was given the equal protection of the laws.'
I should however like to point out that although the decision in the second of the two aforementioned American cases appears to be in accordance with the law in India, the first case is not.
It will be recalled that it considered the legality of a statute which had raised merely a rebuttable presumption. Now, in A. Section Krishna v. State of Madras : 1957CriLJ409 their Lordships of our Supreme Court considered Section 4(2) of the Madras Prohibition Act (No. X of 1937) which opens with the words : 'It shall be presumed until the contrary is shown', that is to say, it raises a rebuttable presumption. Their Lordships held that this provision was intra vires the Constitution, from which it follows that a provision in a statute which raises merely a vebuttable presumption cannot be struck down. I have however no doubt in my mind that Section 135(3) of the Municipalities Act, inasmuch as it raises a conclusive presumption, violates Article 14. On this finding it is not necessary to consider Mr, Khare's argument with regard to Article 19(1)(f).
16. The problem can be viewed from another aspect. Section 135(3) makes the State Government the sole Judge of whether or not the provisions of the Act have been complied with. Can the Government be given such power? The answer is furnished by the judgment of the Privy Council in Hubli Electricity Co. Ltd. v. Province of Bombay , a case under the Indian Electricity Act, 1910. The Government of Bombay had passed an order under Section 4 (1) (a) of the Act which provides :
'The Provincial Government may, if in its opinion the public interest so requires, revoke a license in any of the following cases, namely,
(a) where the licensee, in the opinion of the Provincial Government, makes wilful and unreasonably prolonged default in doing anything required of him or under this Act.'
Thier Lordships agreed that on the point whether there had been a wilful and unreasonably prolonged default, the determining matter was the opinion of the Government and was conclusive. But they proceeded to observe :
'But there the area of opinion ceases. The phrase 'anything required under the Act' means 'anything) which is required under the Act'. The question what obligations are imposed on licensees by or under the Act is a question of law. Their Lordships do not read the section as making the Government the arbiter upon the construction of the Act or as to the obligations it imposes. Doubtless the Government must in expressing an opinion for the purpose of the section also entertain a view as to the question of law. But its view on law is not decisive.'
It is clear therefore that in a case like the present the Government cannot be allowed to arrogate to itself the exclusive power of deciding a question of law, namely, whether or not a municipal tax has been imposed in accordance with the provisions of the Municipalities Act.
17. Wigmore in his classical work on 'Evidence' puts the matter succinctly as follows at pages 715 and 716 of Vol. IV (3rd Ed.):
'It is one thing for the Judiciary, while exercising in its own way its constitutional powers, to choose to accept the aid of an official certificate in reaching its determination; but it is quite a different thing for the Judiciary to be forbidden altogether to exercise its power in a certain class of cases. The judicial function under the Constitution is to apply the law necessarily involves the determination of the facts; to determine the facts necessarily involves the investigation of evidence as a basis for that determination. To forbid investigation is to forbid the exercise of an indestructible judicial function. Hence, to make a rule of conclusive evidence, compulsory upon the Judiciary, is to attempt an infringement upon their exclusive province.'
Section 135(3) is designed to withdraw a subject which lies within the exclusive province of the Court and hand it over to the State Government. This simply cannot be done: decision of questions of law must continue to remain within the exclusive jurisdiction of the Court. The most that the legislature can do is to frame a law raising a rebuttable presumption; but it cannot be allowed to raise a conclusive presumption.
18. There is also an alternative approach. In Azimullah v. Suraj Kumar Singh : AIR1957All307 the 'conclusive proof under Section 135(3) was directly raised before Gurtu, J. In that case the special resolution prescribed under Section 134 did not exist. His Lordship held that where the very foundation of the authority given under Section 135 was lacking, namely, the existence of the special resolution under Section '134, the notification of any alleged special resolution was outside the competence of the State Government, and that in such a case, despite the notification, there was no conclusiveness in regard to the procedure under the Act having been followed.
The approach of the Bench of this Court which decided the case of Ram Charan Lal v. State of Uttar Pradesh : AIR1952All752 was the same. Their Lordships were deciding a case under the Land Acquisition Act, Section 6 (3) of which provides that the declaration under Section 6 (1) shall be conclusive evidence that the land is needed for a public purpose; their Lordships pointed out that this way based upon the assumption that the declaration had been made within jurisdiction after complying with the provisions of S, 5~A, but where the provisions of this section had not been complied with the; declaration made by the Government under Section 6 was without jurisdiction, so that the conclusiveness provided for in Section 6(3) does not attach to it. It thus appears that even if I were to uphold the validity of Section 135(3), the conclusiveness it provides will not attach to the Notification in respect of the water-tax imposed by the Board.
19. Earlier in this judgment I have shown that in imposing the water-tax the Board acted in contravention of Sub-section (1), and both parts of Sub-section (3) of Section 131; the imposition has therefore not been in accordance with the provisions of the Act. Sub-section (3) of Section 135 is ultra vires Article 14. Otherwise also it is illegal inasmuch as it gives the State Government power which it cannot possess under the law.
Even if I were to assume for the sake of argument that Section 135 (3) is valid, the conclusiveness of proof it declares does not apply to the facts of this case, inasmuch as there was no lawful foundation for the issue of the Notification under Section 135 (2). For these reasons it is not possible to resist the conclusion that the imposition of water-tax by the Board has been unlawful.
Consequently this petition is allowed and the Board directed to refrain' from realising the water-tax from the petitioners until such time as the taxis imposed in strict compliance with the provisionsof the Act. In the circumstances of the case, thepetitioners will be entitled to their costs, which I fixat Rs. 100/-.